Special Permit Quandary

The question facing the East Hampton Village Zoning Board of Appeals on Friday was this: If an applicant is tearing down most of a pre-existing, non-conforming house to build something that is code-compliant, does he still need to apply for a special permit? In the no good deed goes unpunished department, it appears he does.
The board was faced with just this quandary when Nick Capstick-Dale of 98 Egypt Lane, who is not only tearing down most of a nonconforming house, save for a converted garage area, to build one that is more compliant, but is also replacing three cesspools that are uncomfortably close to groundwater to put in a new and improved septic system farther from the wetlands.
He needs a freshwater wetlands permit for the work because his proposed house, pool, deck, and driveway will all be 77 feet or closer from wetlands where 150 feet is required. The upgraded septic and drainage systems will be 141 and 68 feet from wetlands where 200 feet is required.
The board lauded Johanna Caleca, the applicant’s attorney, along with the rest of Mr. Capstick-Dale’s team for the work they intend to do, and the board’s chairman, Andrew Goldstein, made it clear that Mr. Capstick-Dale could anticipate a determination in his favor on May 13 for the wetlands permit, but the board is faced now with setting precedent in the village, a continuing obstacle as teardowns become the norm rather than the exception.
“This is just something in our code which might not be entirely clear,” said Linda Reilly, the village attorney. “Even though they’re bringing the septic into compliance, they are leaving part of the structure. Other municipalities require full conforming or a special permit. It’s a chance to make an interpretation,” she said, suggesting that the project might also require a special permit.
Mr. Goldstein agreed that it was a good thing to do. “It’s about the village’s ability to control these uses,” he said. “We can’t proceed with blissful ignorance now that we’ve been alerted. Even though this is a relatively benign application, not every one is going to be this easy.”
The application will be renoticed for a hearing on the special permit request because, as Mr. Goldstein pointed out to Ms. Caleca, “This is an issue beyond your client’s application. We don’t know all the situations where this could be important.”